Internet & Email Abuse
The growth of the availability of internet and email access in Canadian workplaces offers both opportunities and challenges to employers. Such information technologies have the potential to speed communication, expand the firm's knowledge base, and assist in balancing personal and workplace responsibilities to create a more productive workforce. Coupled with this potential for benefit is the potential for loss and abuse.
Types of Internet and Email abuse
Internet and email abuse at the workplace can take many forms. Generally, e-mail and internet abuse can be categorized as issues relating to the usage of the electronic systems by the employee, and issues relating to the content of the communications made. As content and usage are inseparable when using electronic media, the categories are inter-related, however, the substance of the abuse can be distinct.
Usage abuse concerns issues relating to the use of the company's property for non-work related purposes. Examples of email and internet usage abuse include the volume of the usage in terms of media storage and bandwidth, the amount of time an employee devotes to viewing and producing non-work related communications or surfing the web, the detrimental effect on the employee's productivity, the effect of the usage on the communication infrastructure of the company, the transmission, collection, viewing and storage of content described below, and the nature of the non-work usage (hacking, spreading of viruses, etc.)
Content abuse concerns issues relating to the nature of the content of the electronic communications viewed, collected, transmitted or stored through company resources. Examples include innocuous non-work related content, unlawful content, illegal content, harassing messages, offensive jokes or photographs and the potential effect on the company's image due to the content of electronic communications passing through their systems. Content abuse potentially creates legal liability in cases where, for instance, an employee unlawfully downloads or copies copyrighted materials, or where an employee transmits confidential information that is not authorized for transmission.
In Syndicat Canadien des Communications, de l'energie et du papier, section local 522 c. CAE Electronic ltee, [2000] D.A.T.C. no. 15, in a period of approximately 4.5 months, the employee claimed about 480 hours of overtime. During the same period of time, he had logged in around 300 hours on the internet, viewing mainly pornography. In upholding the employer's decision to terminate the employee, the Arbitrator concentrated on the amount of time wasted by the employee and the essential theft of overtime rather than the nature of the non-work related content that was accessed.
In Re: Ontario Power Generation Inc. and Power Workers' Union, (2004) 125 L.A.C. 4th 286, the employee misused the company's email and internet by using it to conduct business with agents for the recruitment of exotic dancers. The employee was aware that such use was prohibited and took steps to prevent her use from being detected. In upholding her dismissal, the arbitrator found that the degree of the breach of trust was such that the employer had an overwhelming case for dismissal. However, the content of the communications was significant as well. While the exotic dancing business is not in itself unlawful, a substantial body of public opinion may see it as distasteful. It appears that the likelihood of bringing the company into disrepute because of the content of the messages was also a factor in the Arbitrator's decision.
In Seneca College v. Ontario Public Service Union, [2002] O.L.A.A. no. 415, a professor of 18 years tenure was terminated for the possession of child pornography, which was accessed, downloaded and stored using the college's computer equipment. In upholding the College's decision to terminate the professor, the Arbitrator pointed out that the nature of the contents of the images was in breach of the Criminal Code of Canada and that it was not unreasonable for the College to expect the professor to honour the norms of the institution since he served as a role model to students.
Factors considered in the discipline of abusers
Tests are still developing with respect to whether particular uses of email and internet facilities constitute abuse worthy of termination. However, the interplay between the manner of usage and nature of content appear to be significant factors in determining the type of discipline that should be imposed on the worker abusing their email and internet access privileges.
Other factors not specific to the type of media being used include whether the employee was aware of the prohibited activity and its consequences, the employee's past record, the employee's tenure, the employee's position in the company, the employee's propensity for rehabilitation, the culture of the workplace and permissiveness of use patterns or nature of content, and even whether there are issues as to psychological addiction to internet and email use. These factors would be considered when determining the appropriate level of discipline for the abuser.
Just Cause Termination of Employees for Internet and Email abuse
The same general rules apply for terminating an employee for just cause in relation to internet and email abuse as to other forms of misconduct. The employer has the onus of proving just cause, such as serious misconduct, a serious neglect of duty, a prejudicial effect on its business interests, or willful disobedience. When disciplining employees for internet and email abuse, it is important to make the discipline proportional to the level and quality of abuse. It should only be on rare occasions that just cause will be established on the first offence.
To this end, a clear policy should be put in place by the employer and actively communicated to employees regarding the prohibited use of internet and email facilities of the company. The policy should clearly outline appropriate and inappropriate use of the online equipment and the sanctions that employees face should they abuse the systems. Enforcement of the policy and monitoring of online activities should also take place to prevent a permissive culture from taking hold, which may nullify the ability of an employer to terminate an employee for just cause for abuse of the online systems. Employees generally do not have a reasonable expectation of privacy when sending or receiving messages using company email and when browsing the web on company's systems (although it is unclear whether employees have a reasonable expectation of privacy with respect to the content of emails on a third-party system, which is accessible through the web browsers while not on the computer screen).
The lack of an internet and email policy will not necessarily absolve an employee of liability for its misuse of online facilities. Where an employee's behaviour is so egregious or serious, it is likely that a decision maker would find that any reasonable employee would have known that the activity was prohibited and worthy of serious reprimand or termination. Policies would be useful in establishing expectations as to conduct and consequences of misconduct with border-line cases of abuse of the internet and email.
Guidelines for control of internet and email
- Establish a clear and practical internet and email policy;
- Ensure the policy is understood and acknowledged by employees;
- Monitor use of the internet and email by employees and enforce the policy;
- Use progressive discipline where appropriate;
- Employees can be terminated for abuse of internet and email, but without progressive discipline, such abuse must be of such degree that the employee is in breach of contract.
Author: Rogelio (Sonny) J. B. Mercado, B.A.(Hon.), B.Ed., LL.B., Capt.